The reasoning used by the Supreme court judges are based by the Oakes test. The main and sufficient objective according to the Quebec Court of Appeal and the Commission scolaire was the school safety; however, the Supreme Court found that the limitation went beyond the initial and intended objective set out by the Supreme Court and the Commission scolaire (Canadian Human Rights Reporter, 203). Judges McLachlin, Bastarache, Binnie, Fish and Charron JJ. also said that prohibiting Gurbaj’s right to bear the kirpan has more deleterious effects than salutary because it infringes on his freedom of religion. In addition, factor such as school safety is already at risk since there are other objects in school that could be “used to commit violence acts …show more content…
mentioned that they believe that the decision of this case should be treated as an administrative law instead of a constitutional (Supreme Court of Canada). In addition, they mentioned that a decision or order by an administrative body (in this case the Commission scolaire) “cannot be equated with a ‘law’ within the meaning of section 1 of the Charter (Supreme Court of Canada, 2006). In other words, the Oakes test is best used in a constitutional law that are “prescribed by law” and should not be used to administrative tribunals (Supreme Court of Canada, 2006). In addition, since this case started with an administrative decision, it should have continued with the same approach (Supreme Court of Canada, 2006). However, judges still chose to use the Charter because the primary issue was whether the decision infringed freedom of religion (Gratton, 2008) and not if the “decision maker exceeded its statutory authority in making the decision” (Gratton, 2008). Deschamps and Abella JJ. explained that the reason that the constitutional analysis should apply to laws and not the application of law and since the issue was to determine whether the school board’s exercise of power is reasonable (Canadian Human Rights Reporter, 2013), they determined that the schools board made an unreasonable decision since they did not consider the right of freedom and accommodating safety measure (Supreme Court of Canada,
This decision makes it clear the most important thing for a school to do is to protect the students. It also states that the board of education, whose role is to oversee the schools, must make sure that the staff of the schools is protecting those children. This case highlights that long-term abuse can happen in schools if there are not clear policies or, if there are, that there is no one ensuring that those policies are
The Charter of Rights and Freedoms is an important document that allows us to live our lives without arbitrary governmental control, although there may be certain times when rights should be limited. The R. v Oakes case is a perfect example of this situation coming into play. David Edwin Oakes was caught with an unlawful possession of hash oil and was automatically convicted of trafficking, under section 8 of the Narcotic Control Act. By looking at the Charter, it was clear that section 8 of the NCA violated his right to be presumed innocent until proven guilty, guaranteed in section 11.d. With that in mind, the respondent brought in a motion that challenged section 8 of the Narcotic Control Act. Since the Supreme Court and the Crown were confident that the suspect was trafficking narcotics, they created a four criteria ruling, in order to reasonably limit the rights of the respondent. This is permissible under section 1 of the Charter, which states that “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms…only to such reasonable limits prescribed by law.”2 The respondent’s case passed the first criterion which stated that “the reasoning for limiting the Charter must be proven important enough to override a constitutionally protected right.” The case did not pass the second criterion which stated that “there must be an appropriate connection between the limitation of rights and the objective of the legislation.”2 Therefore, the appeal was dismissed and the respondent was released. After reviewing the case it was clear that even though the suspect did not have his rights limited against him, limiting rights should be used more often in severe cases.
This essay will analyze the entire case R. v. Morin and evaluate the facts, issues, positions of the Crown and accused. The decisions made during this case and reasons that ultimately lead to the final verdict by the Ontario Court of appeal. This essay will evaluate the decision of whether the delay of the R. v. Morin and the cases that it set precedent for were valid decisions made by the court. This evaluation will describe the arguments made on both sides during these trials. It will discuss how the decision made by the court to decide the trial delay being reasonable were the correct decisions and that section 11(b) of the Charter was not violated. The essay will also discuss the court cases R. v. Godin...
In this instance the government regulation to keep the school safe is interfering with Rajiv’s fundamental freedom of conscience and religion stated in section 2 of the charter, and it is doing so unjustly. While the information given in the story was scarce, there were no reports of a Kirpan being used a weapon before, any problems with weapons, or any attempt to find an alternative instead of disallowing the Kirpan completely . In the case Multani v. Commission scolaire Marguerite-Bourgeoys The Supreme Court of Canada decided that the decision to prohibit the wearing of a Kirpan to be a violation of one’s fundamental freedom. This is important because a precedent has been set by the Supreme Court of Canada. After the Multani v. Commission scolaire Marguerite-Bourgeoys case the court decided that if that given the premise a student has not used the Kirpan as a weapon before, and sincerely believes that a metal Kirpan is essential in paying respects to their religion, it is within their rights to wear one. This important as it proves that the government regulation seized Rajiv’s Kir...
Blair, Annice. Law in Action: Understanding Canadian Law. Toronto, Ontario: Pearson Education Canada, 2003. Print.
Decision : Reasonable standard held to be proper standard for determining legality of searches conducted by public school officials.
The U.S. District Court held that Morse was justified in her suspension of Frederick for his actions and that it was not protected by the First Amendment (Facts and Case Summary: Morse v. Frederick). However, the U.S. Court of Appeals for the Ninth Court reversed the decision stating that the schools suspension was unconstitutional and violated his first amendment rights because he was punished for the content of his speech and any disturbance it could have caused (Facts and Case Summary: Morse v. Frederick). The U.S. Supreme court granted certiorari in the end (Facts and Case Summary: Morse v. Frederick)
The Canadian Charter of Rights and Freedoms has long been the legal document that protects Canadian citizens from infringements made by unscrupulous politicians and legislators. However, there are questions explored about the Sections of the Charter and in those of Section 7 in particular. This is because of the protective function of Section 7 and its obligations of the protection of a citizen’s rights to life, liberty and security of the person. There are third parties that could be posing “threats” to Charter interests and therefore the extents of Section 7 in terms of its protective function for individuals’ rights are put into question. Section 7 of the Charter says that “[E]veryone has the right to life, liberty and the security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” The meaning of Section 7 is to adhere to each individual’s right to the sanctity of life, their physical liberty in a narrow sense, and the integrity of the person is to be kept secure. However, what would the extent of Section 7 be or moreover, what is the extent of each protected interest? The objective of this paper is to examine the extents of Section 7 of the Charter in which the focus is on the protected interests of life, liberty and security of the person. Each protected interest will be discussed in depth with its relationship to a specific Canadian court case. This will help to determine the extent of Section 7 and therefore help understand how much the Charter protects the freedom of Canadian citizens. For right to life, the First Nation communities in Canada had ‘high risk’ of threats to health in their water systems according to Health Canada. The focus of this topic...
Tse was R v. Duarte. R v. Duarte had gone to the Supreme Court of Canada to fight section 8 of the Canadian Charter of Rights and Freedoms. This case presented similar features to R v. Tse. Mario Duarte was under investigation for a drug related situation. Police officers had set up a warrantless camera in the hotel room where the undercover cop would meet Mario Duarte, and was later convicted. Officers used the video as evidence but it was found that it violated section 8 of the Charter. Later the case had been appealed and Justice Peter Cory, found that what the Police officers had done was justified and did not violate the reasonable privacy. Justice Peter Cory relied upon United States v. White and Lopez v. United States to justify his reasoning. Another case that relates is Hunter et al. v. Southam Inc. This case is a landmark case to the Supreme Court of Canada because it is the first privacy rights case that is based on s. 8 of the Charter of Rights and Freedoms. The investigation began by the government by giving authority to Combines Investigation Act to examine files in Southam Newspaper. The judge in Alberta found that the Act was conflicting with the Charter and therefore the evidence gathered was inadmissible. The last case that relates is R v. Godoy. This case relates to R v. TSE because police officers abused their powers by entering into an apartment because of a received 911 call that had been dropped before the caller
Democracy is more than merely a system of government. It is a culture – one that promises equal rights and opportunity to all members of society. Democracy can also be viewed as balancing the self-interests of one with the common good of the entire nation. In order to ensure our democratic rights are maintained and this lofty balance remains in tact, measures have been taken to protect the system we pride ourselves upon. There are two sections of the Canadian Charter of Rights and Freedoms that were implemented to do just this. Firstly, Section 1, also known as the “reasonable limits clause,” ensures that a citizen cannot legally infringe on another’s democratic rights as given by the Charter. Additionally, Section 33, commonly referred to as the “notwithstanding clause,” gives the government the power to protect our democracy in case a law were to pass that does not violate our Charter rights, but would be undesirable. Professor Kent Roach has written extensively about these sections in his defence of judicial review, and concluded that these sections are conducive to dialogue between the judiciary and the legislature. Furthermore, he established that they encourage democracy. I believe that Professor Roach is correct on both accounts, and in this essay I will outline how sections 1 and 33 do in fact make the Canadian Charter more democratic. After giving a brief summary of judicial review according to Roach, I will delve into the reasonable limits clause and how it is necessary that we place limitations on Charter rights. Following this, I will explain the view Professor Roach and I share on the notwithstanding clause and how it is a vital component of the Charter. To conclude this essay, I will discuss the price at which democr...
The Canadian law that requires the licensing and registration of handguns has been around since the 1930’s. The new statute, enacted in 1995 is currently under heated debate, the act extends the licensing and registration requirements to shotguns and rifles. Wendy Cukier, president of the Coalition for Gun Control says, “More Canadians are killed with rifles and shotguns every year than with handguns”. The ultimate purpose of the Act according to the government is to reduce firearm offences and violent crimes including murder. Moreover, Cukier believes the real issue is saving lives, as licensing and registration help make gun owners more accountable. She also points out a list of kids killed with firearms- a boy shot at a birthday party, a Grade 3 student shot as his twin played with a rifle. Gun control advocates may also highlight some other incidents involving firearms including the 1989 massacre at Montreal’s Ecole Polytechnique that claimed the lives of fourteen women and the recent school shooting that killed a fifteen-year old student. Ironically, the shooting occurred at a Taber, Alberta high school, the same province that is leading a fight to strike down the Firearms Act as unconstitutional.
In the contentious world of politics the actors at times find themselves at an impasse, unable to move forward between their conflicting visions. In these moments the courts may be asked to mediate between the different levels of government by providing constitutional or legislative advice. These scenarios can become perilous because since the courts must provide insight on issues that are political without stepping outside of its jurisdiction. Regardless of their dangers, however, I would argue that the reference instrument has proven to be a valuable tool in preventing political chaos. In the Patriation Reference and the Quebec Secession Reference the courts ++++---In order to illustrate the importance of reference cases in the Canadian system, despite their shortcomings, I will first look at the history of the advisory mechanism with a view to explain the roll of the courts. I will then look at the constitutional perspectives the courts took in several reference cases, especially the Patriation Reference and the Quebec Cessession Reference. In the next section I will explore the ways in which the courts opinions in these cases impacted Canadian federalism to determine the constitutionality of their advice. Finally I will explore the eventualities of a system without reference cases to demonstrate why they are so important. Attention will also be paid to the reference system of the United States in order to provide a comparative view. I will argue that in reference cases the Supreme Court takes on an important role as a mediator between political actors, however, the Court must act with caution as these are perilous grounds where suggestions can cross into political territory. – Indeed, political actors can abuse the system, >re...
Through using case laws, the First Amendment, and previous cases, Justice Abe Fortas explains the reasoning behind why the principal was not permissible. In the first two paragraphs, Fortas provides a brief summary stating how the policy banning armbands go against the First Amendment. In the following paragraph, Fortas says, “Only a few of the 18,00 students in the school system wore the black armbands.” When introducing his first argument, he supports this fact explaining how “the work of the schools or any class was [not] disrupted.” As for the fourth paragraph, Justice Fortas provides a counter argument with what the District Court said. The District Court concluded the school authorities were reasonable since it was based upon their fear o...
It was irrational for these students to be suspended from the school. The high school students named John F. Tinker, who was fifteen-years-old, John’s younger sister Mary Beth Tinker, who was thirteen-years-old, and their friend Christopher Eckhardt, who was sixteen years old, should not have been suspended. They were under the protection of the First Amendment. The parents of those students sued the school district for violating the students’ right of expressions and sought an injunction to prevent the school from decupling the students. The Supreme Court of the United Sates stepped in and the question of law was if. They ruled in the favor of the Tinker’s because it was in a seven to two decision "Tinker V. Des Moines Independent Community School District."
In the year 1970, the Canadian government founded the Law Reform Commission of Canada to ensure the progression of law making and to make recommendations for legal changes . The Law Reform Commission of Canada is constantly importing and suggesting proposals towards the criminal code of Canada. During the year of 1985, t...